Long #162838 v. Ryan et al

Filing 25

ORDER ACCEPTING AND DOPTING REPORT AND RECOMMENDATION 22 - Petitioner's Objections (Doc. 23 ) are overruled. IT IS FURTHER ORDERED that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 11 ) is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of th e Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge Diane J Humetewa on 2/13/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Larry Bernard Long,
Petitioner,

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ORDER

v.

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No. CV-14-02655-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on pro se Petitioner’s Amended Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 11) and the Report and

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Recommendation (“R&R”) issued by United States Magistrate Judge Deborah M. Fine

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(Doc. 22).

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Petition”), Petitioner raised three claims for relief: ineffective assistance of counsel in

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violation of the Sixth and Fourteenth Amendment; prosecutorial misconduct in violation

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of his Fifth, Sixth and Fourteenth Amendment rights; and sentencing errors in violation

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of the Fifth, Sixth and Fourteenth Amendment. (Doc. 11 at 6-8). After a thorough

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analysis, Judge Fine recommended that this Court deny the Amended Petition because it

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was untimely filed and Petitioner is not entitled to tolling. On May 2, 2016, Petitioner

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timely filed objections to the R&R. (Doc. 23). Respondents filed no objections.

In his Amended Petition for Writ of Habeas Corpus (the “Amended

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I. R & R and Objections

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In the R&R, Magistrate Judge Fine set forth the procedural background of this

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case. The Court need not repeat that information here because Petitioner did not object to

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any of the information in the background section. See Thomas v. Arn, 474 U.S. 140, 149

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(1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C),

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“does not on its face require any review at all . . . of any issue that is not the subject of an

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objection.”). Thus, the Court fully adopts that section of the R&R.

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A. Standard of Review

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This Court must “make a de novo determination of those portions of the report or

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specified proposed findings or recommendations to which” Petitioner is objecting. 28

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U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (emphasis

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added). Further, this Court "may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);

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Fed.R.Civ.P. 72(b)(3).

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B. Analysis

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As an initial observation, it is apparent that Petitioner misunderstood that part of

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the R&R that describes the procedural background leading up to the filing in this Court of
his original federal habeas petition and the Amended Petition.

Petitioner spends a

considerable amount of time refuting what he mistakenly believes is Judge Fine’s finding
that his original habeas petition was not timely filed pursuant to this Court’s orders. (See
Doc. 23 at 5-7:23-28) (“[w]hen a federal magistrate judge granted multiple extensions for
the prisoner to file his federal habeas petition, such extensions effectively instructed the
prisoner that if he followed the court’s schedule, his federal filing would be deemed
timely.”). Magistrate Judge Fine did not make such a finding. Instead, the R&R noted
that Petitioner’s Amended Petition was “timely filed in relation to [this Court’s] January
14, 2015 Order.” (Doc. 22 at 1:27-28) (emphasis added). Judge Fine explained that on
January 14, 2015, this Court granted Petitioner an extension of time to file an amended
petition, which he did. Petitioner’s Amended Petition (Doc. 11) was therefore filed on
February 24, 2015 in accordance with the Court’s extension order and Judge Fine did not
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conclude otherwise. Consequently, Petitioner’s arguments related thereto are misplaced

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and the Court need not consider them as they are not proper objections under

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Fed.R.Civ.P.72(b)(3).

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What the R&R does explain, however, is that Petitioner’s original habeas petition

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was not timely filed in relation to the one-year statute of limitations for state prisoners to

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file a federal habeas petition once his state court review process concluded. In other

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words, under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Petitioner

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had one-year from April 6, 2012, the date his state conviction became final, to file his

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habeas petition and he failed to do so. (See Doc. 22 at 4:22-28) (“Petitioner had 35 days

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from March 1, 2012 (or April 5, 2012) to petition the Arizona Court of Appeals for

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review of the trial court’s order. Ariz.R.Crim.P. 32.9(c), 1.3(a)) (emphasis added).

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Petitioner did not file a petition to the Arizona Court of Appeals by April 5, 2012. Thus,

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the AEDPA’s one-year statute of limitations began to run, giving Petitioner until April 5,

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2013 to file his habeas petition. Petitioner again did not do so. Rather, he waited for

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almost two years, until December 9, 2014, to file his original habeas petition. Moreover,

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as thoroughly discussed in the R&R, Petitioner was not entitled to equitable tolling of the

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one-year statute of limitations period because Petitioner is unable to show “(1) that he has
been pursuing his rights diligently and (2) that some extraordinary circumstances stood in
his way to prevent him from timely filing his habeas petition.” (Doc. 22 at 5).
Broadly construing Petitioner’s objections, he essentially disagrees with the R&R
finding that 1) his alleged attorney abandonment does not amount to an extraordinary
circumstance which entitles him to equitable tolling and 2) that his limited knowledge of
the law and limited access to the law library does not entitle him to equitable tolling.1
(Doc. 23 at 8). Petitioner first claims that his “counsel was supposed to stay on in an
advisory capacity, and never advised Petitioner, on anything, [f]ailed to inform [him]

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Petitioner also interjects arguments in support of his substantive claims of
ineffective assistance of counsel and prosecutorial misconduct, which the R&R did not
address. Judge Fine’s R & R was confined to the procedural timeliness of Petitioner’s
habeas petition. Therefore, the Court need not address Petitioner’s extraneous arguments
unrelated to the timeliness of the habeas petition.
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about crucial facts related to his case, and failed to communicate altogether with his

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client.” (Id.) This is essentially the same argument Petitioner made in his Amended

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Petition. (Doc. 11 at 5 and 7). Petitioner does not offer any evidence or argument to

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refute the R&R finding that his defense counsel was to remain on his case in an advisory

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capacity “until a final determination is made by the trial court regarding any post-

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conviction relief proceeding.” (Doc. 22 at 8:8-11). Petitioner does not point to anything

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in the state court record to counter this R&R finding.

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objection to the R&R finding that his claim of attorney abandonment entitles him to

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equitable tolling lacks merit.

Consequently, Petitioner’s

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Petitioner also argues that he should be entitled to equitable tolling because he

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“was locked down in Arizona’s Super Max unit [where] he did not have access to case

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law[.]” (Doc. 23 at 14:26-28). These assertions, which are similar to those made in his

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Amended Petition, were thoroughly considered in the R&R. (Doc. 22 at 6) (“Petitioner

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was also in Arizona’s Super Max Unit from 2010 to 2014 with limited access to law

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library.”). The Magistrate Judge observed that the Amended Petition failed to set forth

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the specific efforts that he made to overcome the obstacles that he believed limited his

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access to the law library. (Id. at 7:1-9). Petitioner argues that he has been diligent in
pursuing his rights by educating himself on the law and by reading what other prisoners
have provided to him because “[t]he prison ‘law library’ does not provide any resources
needed to argue a case in any court.” (Doc. 23 at 18). Petitioner, however, does not
address the R&R’s reliance on Ninth Circuit precedence that has denied equitable tolling
under circumstances similar to his. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.
2009) (denying equitable tolling where ordinary prison limitations on petitioners’ access
to the law library existed). Thus, Petitioner has not overcome his burden to show that
some extraordinary circumstance prevented him from diligently pursuing his habeas
petition. See Pace v. DiGuglielma, 544 U.S. 408, 418 (2005). Consequently, this Court
finds no merit to Petitioner’s objections to the Magistrate Judge’s determination that his
federal habeas petition was untimely pursuant to 28 U.S.C. § 2244(d)(1) and that he is not
entitled to equitable tolling.
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Accordingly,

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IT IS ORDERED that Magistrate Judge Fine’s Report and Recommendation

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(Doc. 22) is accepted and adopted as the Order of this Court. Petitioner’s Objections

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(Doc. 23) are overruled.

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IT IS FURTHER ORDERED that Petitioner’s Amended Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 11) is DENIED and DISMISSED

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WITH PREJUDICE.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because dismissal of the Petition is justified by a plain procedural

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bar and jurists of reason would not find the procedural ruling debatable.

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IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this
action and enter judgment accordingly.
Dated this 13th day of February, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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